Blog: The failure of Canadian toxics law in Canada means fewer cancerous substances in the air, but more on the ground

The Canadian Environmental Protection Act is being amended by Parliament for the first time in two decades and is long overdue for reform.

By Joe Castrilli, CELA counsel and Fe de Leon, CELA senior researcher
This opinion piece originally appeared in the October 5, 2022 issue of The Hill Times. Reprinted with permission.

Whether used for industrial, commercial, or other purposes, cancer-causing heavy metals like arsenic, lead, and mercury compounds, or organic chemicals like benzene, are not substances to which humans should be exposed.

Nationally, on-site air emissions of these and other cancer-causing agents decreased by millions of kilograms during the 2006-2020 period, but their on-site disposal and land release increased by tens of millions of kilograms during the same period.

Is this progress toward a healthier environment, or are we simply spreading these chemicals around and putting a different part of the environment and different people at risk?

The question is timely because the federal law enacted to protect us from environmental health risks caused by industrial chemicals, the Canadian Environmental Protection Act (CEPA), is being amended by Parliament for the first time in two decades and is long overdue for reform.

A slow-motion public health train wreck

The Senate of Canada considered major amendments to CEPA earlier this year for the first time in more than two decades. A Senate committee heard evidence on two issues that loom large on whether CEPA is effective in controlling toxic substances: substitution of one environmental pathway for another in the Act’s management of such substances; and discretionary implementation of the pollution-prevention provisions of CEPA, including relying on pollution abatement measures as substitutes for prevention. When the substances are toxic as well as cancer-causing, these approaches are not helpful. Abatement is not prevention and can result in merely shifting the pollution to another environmental pathway, not eliminating it altogether.

The federal government’s amendments, largely adopted by the Senate, were not responsive to addressing these issues. It now rests with the House of Commons to address the problem when the Senate-amended bill reaches the House this fall. Failure to do so could result in the issues not being taken up again by Parliament for another 20 years.

Waiting until the 2040s to reform problems with our federal law we have known about since the 2000s is not the hallmark of environmentally sound decision-making. When the subject is substances that cause cancer, such foot-dragging has all the makings of a slow-motion public health train wreck.

Playing chemical whack- a-mole with some of the most dangerous substances on Earth

Data the federal government obtained from industry under CEPA’s National Pollutant Release Inventory on releases of 32 known or suspected cancer-causing substances to the environment tell a consistent story for the years 2006 to 2020. On-site air emissions of cancer-causing agents (identified as toxic substances under CEPA) decreased 39 per cent from 6.1 million kilograms in 2006 to 3.8 million kilograms in 2020. However, on-site disposal and land releases of these substances increased 41 per cent from 109 million kilograms in 2006 to 154 million kilograms in 2020. A similar trend is observed when individual substances are considered during this 15-year period. For example, on-site air emissions of arsenic decreased 67 per cent from 80,000 kilograms in 2006 to 26,000 kilograms in 2020. However, on-site disposal and land releases of arsenic increased 400 per cent from 13 million kilograms in 2006 to 66 million kilograms in 2020. By any benchmark, reducing a substance in one environmental pathway (air) by millions of kilograms but allowing it to increase in another environmental pathway (land) by tens of millions of kilograms, amounts to playing chemical whack-a-mole with some of the most dangerous substances on Earth.

Abatement has trumped prevention

It did not have to play out this way. Unfortunately, CEPA’s implementation has frequently involved use of pollution-abatement measures as substitutes for pollution prevention. Pollution abatement (i.e., reducing the concentration of a substance’s emissions into the environment) is not the same thing as pollution prevention (i.e., eliminating use and creation of a substance). A 1995 House Environment Committee report understood this distinction: “a major shift in emphasis is required in the legislation, from managing pollution after it has been created to preventing pollution in the first place. We believe that pollution prevention will avoid, eliminate and reduce more pollution than ‘react and cure’ strategies and that it will do so more cost-effectively … we reiterate the need to emphasize preventive measures and to phase out pollution control methods.” The committee’s expectation has not been met by the way CEPA has been implemented and has undoubtedly contributed to the mere shift of cancer-causing substances from one environmental pathway to another rather than to their elimination from Canadian commerce and the environment.

The folly of discretionary pollution-prevention planning

An equally regrettable development is that Parliament made pollution-prevention planning discretionary, not mandatory, under CEPA in 1999. Thus, in the last 20 years, approximately 25 toxic substances listed in the Act have been subject to pollution-prevention planning requirements. At the rate of 25 substances every 20 years, it will take until the 22nd century for the existing 150 toxic substances listed in the Act to each have a pollution prevention plan. This is a leisurely pace to addressing chemicals the federal government regards as the worst of the worst substances in the Canadian environment.

What should be done

The legislative solution to this problem is simple. Make pollution-prevention planning mandatory for all cancer-causing agents listed in CEPA, and forbid pollution abatement as a substitute.

The political will to enact the solution is more difficult. At the end of the day, Canadians should ask: is what we have been doing up to now any way to protect human health and the environment and, if not, can Canada do better? Let’s hope the House of Commons gets to the right answer when the CEPA amendments come before it this fall.